Republicans say the FCC has been bullied into supporting the open regulations by a politically motivated Obama administration.
Photograph: Free Press

Later this week, a Jumbotron will arrive outside the Washington DC offices of the Federal Communications Commission. The giant screen being erected by internet activists at OpenMedia will broadcast messages calling on the regulator to keep standing up for strong rules to protect an open internet. But this is not so much a protest as an early celebration, complete with a gif, a Lolcat and a proclamation:

WE CAN HAZ NET NEUTRALITY?

The animated cats have almost certainly won this round. But as net-neutrality activists know, it won’t be long before the Republicans strike back.

On Wednesday, the most vocal congressional committee will start to investigate claims the FCC has been railroaded into voting through new rules governing the broadband industry after undue pressure from the president. The hearing of the House oversight committee will begin before the regulators’ landmark vote on Thursday because, by now, the result is a foregone conclusion: the FCC is now committed to protecting net neutrality – the concept that all information and services should be entitled to a level playing field online.

But hearings are just the beginning of a series of attacks on the FCC’s proposals likely to build momentum ahead of the 2016 election. Republicans are convinced that Democrats aim to paint them as enemies of a free internet – and having lost ground, they are launching an early campaign of their own to win back the debate.

According to Greg Walden, the Republican chairman of the House communications and technology subcommittee, the FCC has been bullied into supporting the open regulations by an Obama administration intent on using a hot-button issue for political gain.

Walden’s investigation follows reports in the Wall Street Journal that the White House set up a “shadow FCC” (codename: Obamanet) in the months leading up to Thursday’s vote. This secret task force was charged with building a case to regulate broadband under Title II of the Communications Act – the toughest set of rules available to the FCC that give the regulators utility-like jurisdiction over broadband in the future.

“The closer we get to the FCC rubber-stamping President Obama’s internet grab, the more disturbing it becomes,” Walden said in a statement announcing the hearing.

A general outline of the new net-neutrality plans has been disclosed, but so far just a handful of Washington insiders have seen the details. By Friday, the FCC’s two Republican commissioners will be free to give their detailed objections to the proposals. They are preparing to blow holes in the outline, highlighting legal issues that will be seized on instantly by Title II’s vociferous opponents.

The two commissioners, Ajit Pai and Michael O’Rielly, have fought to have the released ahead of the vote. “With the future of the entire internet at stake, it is imperative that the FCC get this right. And to do that, we must live up to the highest standards of transparency,” they wrote in a statement.

Their internet-activist opponents support the transparency, but critics charge the move is an attempt at further delaying the long-anticipated FCC vote.

In the meantime, Republican senator John Thune is working on a bill that would trump the FCC’s plans, with the broadband industry lining up to sue.

For some on the right, however, this Thursday’s FCC vote is more about the 2016 election than net neutrality. They charge politics was the real reason that Obama stepped into a debate that has consumed potential voters that may not fall into typical Democrat or Republican territory.

“There’s never been an issue like this where the president has taken such an active roll,” said Berin Szoka, president of the thinktank TechFreedom. “They are making this an issue that they can keep milking politically.”

Szoka was one of the panelists at an Lincoln Labs’s Reboot Congress conference earlier this month in Washington. Lincoln Labs, a libertarian technology lobby group, pulled in an all-star gathering of Republicans – including likely presidential candidates Ted Cruz, Rand Paul and Carly Fiorina – for the conference at the US Chamber of Commerce. At the meeting, Senator Thune said Title II is a “terrible” idea.

On stage, Szoka won a round of applause after he told Nick Grossman, the general manager of tech investor Union Square Ventures that Title II was the last thing his industry needed. “We could resolve all of these issues in Congress,” said Szoka. “If your community had spent a fraction of the time pushing for a legislative solution or had the president asked for one, we’d be done.”

With the current timing, a court case – or a congressional battle – could be reaching a peak just as the 2016 midterms campaigns begin in earnest. So far Republicans have fared badly in the net neutrality debate.

There is a whiff of sour grapes. One telecoms lobbyist, speaking anonymously, said the net neutrality debate had been hijacked by the left and Democrats smarting after their midterm election defeat. The White House has made “a cynical political calculation that this is an opportunity to reinvigorate the net roots base”, the lobbyist told the Guardian.

“They lost them on Snowden. This is an easy call.”

But Republicans – and their supporters in the business community – believe they have a fighting chance on net neutrality. Outside the Chamber of Commerce’s imposing Hall of Flags this month, Garrett Johnson – a Lincoln Labs founder and a former special assistant to another presidential candidate, Florida governor Jeb Bush – said that once the details of the orders were out, opponents would have more to work with and he was confident of winning support in the tech community.

“I don’t think the tech community is fully on board with the idea of giving a Washington bureaucracy a blank cheque to decide how the internet is managed,” Johnson said. “The end result will be more regulation and less innovation.”

It’s been over a year since the courts effectively overthrew the FCC’s authority to regulate broadband internet. The case, brought by Verizon, came after a series of skirmishes with broadband providers, but left a deep a split in the industry. Many cable operators were happy (enough) with the old regulatory regime – the Open Internet Order of 2010 – and feared that vacating the old rules could pave the way for tougher ones.

And so it came to pass. While the FCC licked its wounds and worked on new rules, internet activists organised a mesmerisingly effective lobbying campaign in support of Title II. The campaign spurred president Obama into action and triggered a U-turn from the FCC, which only last May was proposing a “hybrid” solution that would have allowed the broadband companies to create high speed fast lanes for some paying clients.

That proposal elicited howls of protest across the internet and from companies including Etsy, Netflix, Reddit and others which charged that it would end net neutrality and make it impossible for new companies, without access to fast lanes, to compete.

Senator Ted Cruz summed up what appeared to be the Republican position on the debate with a tweet late last year:

Senator Ted Cruz (@SenTedCruz)

"Net Neutrality" is Obamacare for the Internet; the Internet should not operate at the speed of government.

What a difference a few months make. Most of Cruz’s colleagues are now on board for “net neutrality”. Thune’s proposals would also ban fast lanes and prevent broadband firm’s from “throttling” – slowing down – services. Now they have to convince a sceptical public.